Reverend Andrew Moime and David Tinemau v National Housing Corporation and The Independent State of Papua New Guinea (2012) SC1191

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, Hartshorn & Kariko JJ
• Judgment Date: 01 August 2012
• Court: Supreme Court
• Citation: (2012) SC1191
• Docket Number: SCA 146 OF 2009
• Year: 2012
• Judgement Number: SC1191

Full Title: SCA 146 OF 2009; Reverend Andrew Moime and David Tinemau v National Housing Corporation and The Independent State of Papua New Guinea (2012) SC1191

Supreme Court: Kandakasi, Hartshorn & Kariko JJ

Judgment Delivered: 1 August 2012

SC1191

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 146 OF 2009

BETWEEN:

REVEREND ANDREW MOIME

First Appellant

AND:

DAVID TINEMAU

Second Appellant

AND:

NATIONAL HOUSING

CORPORATION

First Respondent

AND:

THE INDEPENDENT STATE

OF PAPUA NEW GUINEA

Second Respondent

Waigani: Kandakasi, Hartshorn & Kariko JJ.

2012: 3rd May,

: 1st August

Supreme Court Appeal – exercise of inherent jurisdiction considered – no reasonable cause of action disclosed in statement of claim – no purpose served by appeal being served

Facts:

The appellants appeal against a dismissal of a proceeding in the National Court. In the National Court proceedings, the plaintiffs (now appellants claimed that vacant possession of a property had not been given and that they had suffered loss as a consequence. The National Court dismissed the proceeding after having found that it was a nullity and void ab initio as the plaintiffs had failed to comply with s. 5 Claims By and Against the State Act (Claims Act) by not giving notice to the State, the second respondent, within time.

Held:

The National Court proceeding is frivolous as it is bound to fail. No useful purpose is served by this appeal being heard. Pursuant to the inherent jurisdiction of this Court, the appeal is dismissed.

Cases cited:

Don Polye v. Jimson Papaki & Ors (2000) SC637

Tamali Angoya & Ors v. Tugupa Association Inc & Ors (2009) SC978

Rimbao v. Pandan (2011) SC1098

Mendepo v. National Housing Corporation (2011) SC 1169

Counsel:

Mr. D. Gonol, for the Appellants

Mr. P. Pera, for the First Respondent

Mr. W. Mapiso, for the Second Respondent

1st August, 2012

1. BY THE COURT: This is an appeal against a dismissal of a proceeding in the National Court.

2. In the National Court, the plaintiffs now appellants, claimed that vacant possession of a property had not been given and that they had suffered loss as a consequence. The National Court dismissed the proceeding after having found that it was a nullity and void ab initio as the plaintiffs had failed to comply with s. 5 Claims By and Against the State Act (Claims Act) by not giving notice to the State, the second respondent, within time. The trial judge also stated that if he was wrong in so ordering, he would have reached the same conclusion in relation to ‘the other issues’ pursuant to Order 12 Rule 40 National Court Rules.

3. The grounds of appeal in essence are that the trial judge erred in:

a) his determination of when the cause of action arose,

b) his determination that notice to the State had not been given in time,

c) dismissing the whole proceeding when s. 5 Claims Act does not apply to the first respondent, the National Housing Corporation,

d) determining that ‘State’ includes the National Housing Corporation,

e) dismissing the proceeding when the lack of a s. 5 notice had not been pleaded in a defence,

f) relying on hearsay evidence,

g) not giving parties an opportunity to make submissions on the court’s inherent power to determine a proceeding,

h) considering issues not raised and commenting on pleadings without inviting submissions from counsel.

4. In the course of considering an appeal this court can exercise its inherent jurisdiction if it is of the view that the circumstances so warrant. In Don Polye v. Jimson Papaki & Ors (2000) SC637, the Court said:

“This Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of its process.”

5. This passage was cited and approved in Tamali Angoya & Ors v. Tugupa Association Inc & Ors (2009) SC978 which commented that the exercise of this Court's authority can be by its own motion. The Court then, pursuant to its inherent jurisdiction, dismissed the appeal before it on a ground of appeal that was not specifically argued on the basis that there was an abuse of process. This Court in the case of Rimbao v. Pandan (2011) SC1098 also cited the passage in Don Polye (supra), and in Mendepo v. National Housing Corporation (2011) SC1169, this Court referred to these decisions with approval and stated that the exercise of this Court's authority can be by its own motion.

6. Upon hearing and considering this appeal, it is evident that the statement of claim does not disclose a reasonable cause of action against the defendants, the respondents to this appeal. The cause of action is based on a purported failure by the National Housing Corporation to give vacant possession of a property to the plaintiffs, the present...